Heaney v. U.S. Veterans Admin.

• Decision Date: 11 April 1985
• Docket Number: No. 84-1348,84-1348
• Citation: 756 F.2d 1215
• Parties: John P. HEANEY, M.D., Plaintiff-Appellant, v. UNITED STATES VETERANS ADMINISTRATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1215

756 F.2d 1215

John P. HEANEY, M.D., Plaintiff-Appellant, v. UNITED STATES VETERANS ADMINISTRATION, et al., Defendants-Appellees.

No. 84-1348.

United States Court of Appeals Fifth Circuit.

April 11, 1985.

Larry Watts, Watts & Co. Lawyers, P.C., Robert B. Watts, Bracewell & Patterson, Kelly Frels, Lisa G. Gerling, Houston, Tex., Charles Alan Wright, Austin, Tex., for plaintiff-appellant.

Edward C. Prado, U.S. Atty., San Antonio, Tex., Pamela Mathy, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, GARWOOD and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This case is an appeal from a grant of the defendants' Motion to Dismiss or in the Alternative Motion for Summary Judgment. The plaintiff-appellant Heaney, a doctor employed by the Veterans Administration, sought damages, arising from withdrawal of his surgical privileges, for violation of his first and fifth amendment rights under the authority of Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and its progeny. Heaney requested redress in the amount of several million dollars for damages including, but not limited to, emotional distress, mental anguish and injury to his reputation, and also requested punitive damages predicated on the defendants' alleged reckless, callous and evil acts, which he maintained violated his constitutional rights. Because we find Heaney had access to a measure of administrative relief under Veterans Administrations' regulations, we hold that his damage action is precluded, and accordingly affirm the district court's dismissal for failure to state a claim upon which relief may be granted.

I

The district court styled its action as a dismissal under Fed.R.Civ.P. 12(b)(6); accordingly, we also treat the ruling as a response to a motion to dismiss under Fed.R.Civ.P. 12(b)(6). In reviewing such a dismissal, we may not go outside the pleadings. We accept all well pleaded facts as true and view them in the light most favorable to the plaintiff. We cannot uphold the dismissal "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80, 84 (1957); Cook & Nichol, Inc. v. Plimsoll Club, 451 F.2d 505, 506 (5th Cir.1971).

II

Heaney joined the Kerrville Veterans Administration Medical Center (KVAMC), where he had previously served as a consultant, in June 1980. Soon after Heaney became a full-time VA surgeon, he became embroiled in disputes with Y.C. Smith, then Chief of Staff, and Joshua Seidel, then Chief of Surgery. Heaney asserts that these disputes arose because of his suggestions that the KVAMC procedures were not as good as they should have been and that numerous improvements could be made, and that the defendants resented his observations.

Heaney's tenure at the KVAMC is marked by a constantly escalating series of confrontations between Heaney and other members of the medical staff. These activities culminated in the convening of a local Professional Standards Board which met in October, November and December of 1981 to evaluate Heaney. Among the materials considered by the Board was a tabulation purporting to show the number of patients undergoing major surgery performed by Heaney during a one-year period, and the disposition of those patients in terms of death, infection, or transfer; the tabulation reflected poorly on Heaney. Heaney asserts that this tabulation was fraudulently compiled by members of the hospital staff as part of a conspiracy to oust him unjustly from the KVAMC.

The Board was reconvened on January 4, 1982, to consider whether Heaney should be transferred from surgery to another service. The Board recommended that Heaney's surgical privileges be withdrawn. As recommended by the Board, Heaney's assignment was changed to that of staff physician in the Rehabilitation Medical Service, and the matter was forwarded for further action to the VA Central Office Screening Committee. Heaney maintains the Board's activities were misrepresented to him by the defendants.

Heaney's surgical records were reviewed by two physicians appointed by the VA Central Office. Heaney maintains that this review finally resulted in a finding that he was completely competent and fully capable of performing and discharging his duties as a staff surgeon at the KVAMC. Despite this report, Heaney was not reinstated until nearly seven months after the review, and then only after he had personally appealed to the Chief Medical Director in Washington and demanded a review of his performance by his professional peers. The surgeons subsequently reviewing the data have privately conceded that there was no support whatsoever for the conclusions presented in the "audit" or in any of the material sent to the VA Central Office by the Board, Heaney says.

Heaney alleges the first Professional Standards Board was unduly biased against him and contained members of the staff who were involved in the conspiracy to oust him from the KVAMC. Heaney states that he was read, not given, a list of the charges against him. He also says that he was told that he must request in writing a copy of the charges, and was given twenty-four hours to respond. Heaney further asserts that key documents, including the contested tabulations, were never provided or disclosed to him. Heaney asserts that the Board and the KVAMC secretly recommended his dismissal to higher officials in Washington, and intentionally withheld from him all key supporting material which accompanied that recommendation. Heaney asserts that his reputation was damaged by the circumstances of the initial audit and report.

Heaney alleges that the defendants denied him due process and violated his first amendment rights, and that his administrative relief was inadequate to compensate him for the damage done to his reputation and to his emotional state. Accordingly, Heaney sought to bring suit for declaratory relief and damages directly under the United States Constitution under the authority of Bivens v. Six Unknown Agents. The district court dismissed his claim for failure to state a claim upon which relief may be granted under the authority of Carroll v. United States, 721 F.2d 155 (5th Cir.1983), holding that a measure of administrative remedies was available to Heaney and that his damages action was accordingly precluded. On appeal, Heaney raises only the issue of whether the district court erred in holding that his damages action is barred under Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). For the reasons discussed below, we affirm the district court's holding.

III

Unlike many federal employees, Heaney and other medical personnel at the Veterans Administration hospitals are not subject to the terms of the Civil Service Reform Act (CSRA), which provides an elaborate civil service review mechanism for disputes arising under the employment relationship. Rather, Heaney is subject to the internal disciplinary rules of the Department of Medicine and Surgery (DMS), which were specifically designed to offer less protection than the CSRA.

In passing the legislation which established the VA's hospitals and health-care facilities, Congress was well aware of the special nature of professionals--physicians, dentists, and surgeons. Title 38 of the United States Code, which deals with the VA, is replete with examples of special treatment for professionals in the DMS. Their pay scales are different, 38 U.S.C. Sec. 4118 (Supp.V.1976); their appointments are more discretionary, 38 U.S.C. Sec. 4104 (Supp.V.1976); and they are exempted from other civil service requirements for qualifications. Orloff v. Cleland, 708 F.2d 372 (9th Cir.1983). In addition, administrators are allowed more discretion in disciplining and discharging employees under the DMS regulations than is allowed to administrators under the CSRA.

Pursuant to 38 U.S.C. Sec. 4110, the VA has established a three-stage disciplinary process for the investigation, presentment, and determination of charges involving an employee's alleged "inaptitude, inefficiency, neglect or unwillingness to comply with instructions, established policies, procedures, rules and regulations, and with commonly accepted standards of personal conduct." These regulations are set out in the VA personnel manual.

The first stage of the VA disciplinary process is a local "preliminary inquiry." In cases involving VA surgeons such as Heaney, the preliminary inquiry is conducted by a professional standards board. During this initial stage, employees enjoy few procedural rights.

If, based upon the findings of the professional standards board, the VA station head requests "the removal, demotion or suspension" of an employee, the matter is referred to the Office of the Chief Medical Director of the VA in Washington where it is evaluated by the Central Office Screening Committee. At this second stage the employee also has few procedural rights.

If the Central Office Screening Committee recommends that charges be presented, a letter of charges is issued, commencing formal disciplinary board proceedings during which the employee enjoys a greater range of procedural rights. The letter of charges notifies the employee of the proposed action, the alleged grounds therefor, and the procedural rights available during disciplinary proceedings. The employee may respond to charges in writing or may request a full hearing. The presiding officer of the disciplinary board is required by regulation to conduct the hearings in an impartial and fair manner and must afford both sides the opportunity to properly present and support their respective positions. The employee has a right to an attorney at this hearing, a right to question adverse witnesses, and a right to call witnesses in...